Excessed employees in Japan are assigned to “the chasing-out room”

Excessed employees in Japan are assigned to “the chasing-out room”

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2013, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, New York Law School, All rights reserved.

“Sony, [the] employer of [the] individual for 32 years, consigned him to a room because [it] can’t get rid of him. Sony had eliminated his position at the Sony Sendai Technology Center, which in better times produced magnetic tapes for videos and cassettes. But the individual, now age 51, refused to take an early retirement offer from Sony in late 2010 — his prerogative under Japanese labor law.

“So there he sits in what is called the “chasing-out room.” He spends his days there, with about 40 other holdouts.”

The full text of the article is posted on the Internet at: http://nyti.ms/14UNtAQ 

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The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related post-traumatic stress disorder with competent medical evidence

The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related  post-traumatic stress disorder with competent medical evidence

Ginther v Kelly, 2013 NY Slip Op 05967, Appellate Division, First Department

§13-252.1 of New York City’s Administrative Code, was amended by adding a new provision, §13-252.1[1], the so-called “World Trade Center Law.” This amendment established a rebuttable presumption that "any condition or impairment of health . . . caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law, "shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident . . . unless the contrary be proved by competent evidence."

Mary Gintherfiled a petition pursuant to CPLR Article 78 challenging the New York City Police Commissioner’s denying her application for World Trade Center accidental disability retirement benefits. Supreme Court dismissed Ginther’s petition and she appealed.

The Appellate Division unanimously reversed the lower court’s ruling “on the law” and annulled the Commissioner’s decision, remitting the matter to the Police Board of Trustees for recomputation of the appropriate level of benefits to be awarded to Ginther.

The Appellate Division said that the Kelly respondents “failed to meet their burden of providing competent evidence rebutting [Ginther’s] medical evidence that she suffered from post-traumatic stress disorder and depression following her service as a police officer at the World Trade Center site from September 12, 2001 until November 28, 2001.

Citing Samadjopoulos v New York City Employee’s Retirement System, 104 AD3d 268,* the Appellate Division explained that while “the Medical Board is empowered to resolve conflicting evidence, it may not ignore medical evidence and speculate as to other causes of disabling medical conditions in order to rebut the statutory presumption.”

According to the decision, the Medical Board had rejected the conclusion of Ginther’s doctors based on her delay in seeking diagnosis and treatment for her medical condition, and concluded, instead, that Ginther had suffered from a personality disorder. However, said the Appellate Division, the Medical Board did not cite any credible or competent medical evidence support of its diagnosis.

Further, said the court, the Medical Board failed to provide credible evidence or research concerning the onset of a personality disorder in middle age, a conclusion disputed by Ginther's doctor.

* The Samadjopoulos decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2013/2013_01901.htm

The Ginther decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05967.htm

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The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct

The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct
2013 NY Slip Op 05942, Appellate Division, Third Department

A school custodian [Employee] was served with disciplinary charges pursuant to Civil Service Law §75 alleging that he was guilty of misconduct, incompetence and insubordination. The disciplinary hearing officer found Employee guilty of charges of misconduct and insubordination involving numerous incidents, including Employee’s sleeping while on duty and Employee’s “using vacation days” without giving proper notice or obtaining authorization to do so.

The hearing officer also determined that Employee was guilty of misconduct and insubordination with respect to his behavior after being served with the initial disciplinary charges and specifications brought against him by “verbally abusing his supervisor and failing to immediately leave the premises after being directed to do so.”*

Noting that Employee had violated an earlier "last chance" agreement specifying that dismissal was appropriate if he engaged in any future misconduct, the hearing officer recommended that Employee be terminated from his position.

The appointing authority adopted the hearing officer’s findings and recommendation and dismissed Employee from his position.

Employee applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that Employee's behavior “did not rise to the level of disqualifying misconduct" and awarded him unemployment insurance benefits.The employer appealed the Board’s decision.

The Appellate Division reversed the Board’s ruling, explaining that although the Board was free to make "independent additional factual findings" and draw its own independent conclusion as to whether Employee's behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the disciplinary hearing officer's "factual findings” with respect to Employee’s conduct and the hearing officer's conclusion that Employee was guilty of insubordination.

As the Board failed to consider whether some of the established instances of misbehavior constituted disqualifying misconduct, and improperly contradicted other factual findings of the disciplinary hearing officer, the Appellate Division remanded the matter to the Board “so that it may reconsider” its ruling consistent with the court’s decision.

* Presumably the initial disciplinary charges served on Employee were amended or supplemented to reflect these additional allegations of misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05942.htm
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